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The Tsilhqot'in decision: Time for provinces and industry to accept consent as new standard

On June 26 the Supreme Court of Canada released a much anticipated decision in the Roger William Case, officially cited as Tsilhqot'in Nation v. British Columbia. The case got started due to a conflict over B.C.'s allocation of timber rights to clear-cut areas of the Tsilhqot'in traditional territory.

MiningWatch knows the Tsilhqot'in Nation through our work on the hugely problematic and twice rejected Prosperity/New Prosperity Project being proposed by Taseko Mines Ltd. The project is located outside the area that was in question in the court proceedings so is not directly affected by this decision. This has not, however, prevented the company from trying to put their spin on the decision suggesting it somehow clears the path forward for the project. The Tsilhqot'in countered that nothing could be further from the truth, emphasizing that while they have not achieved recognition for title to the proposed mine site, an earlier decision recognized their Aboriginal rights to harvest natural resources from the area -- rights that would be significantly impacted by the project. But back to the recent decision…

The core issue in the case is the extent and nature of "Aboriginal title" or loosely put, "ownership" over a traditional territory. (See this video of lawyer Jack Woodward for background on the case.) Title is not exactly the same as fee simple, private property but is a unique type of property right that had not been well defined or applied to a specific piece of land by Canadian courts -- until now.

It's been a long process with a successful trial decision in 2007 that recognized title across 45 per cent of the area in question and affirmed rights to harvesting resources across the rest of the area. A subsequent appeal court decision then only recognized title on small areas of intensively used lands or what Grand Chief Stewart Phillip and others call "postage stamps."

The Supreme Court decision threw out the appeal court decision and affirmed the allocation of title to the broader area of land that included areas of seasonal and rotational uses for hunting, fishing, and provided added clarification on the meaning of Aboriginal title.

Some commentators have been more nuanced and some critical of the decision from an Indigenous rights perspective noting the continued presence of important colonial constructs in the decision: provincial jurisdiction to pass laws covering title lands, not recognizing title to areas of shared use between nations and other barriers required to prove title, and the ability to override opposition through a "justification" of the infringement of title rights. (See Twitter feeds of @apihtawikosisan and @Hayden_King for some interesting counterpoints.)

Notwithstanding these limitations the majority of commentators conclude that this represents a substantial step forward in recognizing the rights of Canada's Indigenous peoples to manage their territories. Of particular interest in the decision and in the succeeding media coverage has been the references to requiring the "consent" of Indigenous peoples before decisions affecting title lands are made. The decision is clearly pushing Canada into greater harmony with established international norms like the UN Declaration on the Rights of Indigenous Peoples.

Some other interesting aspects of the decision (all of which build on or reaffirm past decisions) include:

Recognition of rights to exclusive decision making of the land, and right to benefit from the use of the land.

Repudiation of the doctrine of Terra Nulius which underlies Canada's and the provinces assumption of control and ownership over the land base.

Title land must be managed in such away to ensure benefits of the land can be enjoyed by future generations;

A collaborative and reconciliatory approach must be taken by federal and provincial governments in dealing with Aboriginal rights issues.

Recognition that Indigenous laws and knowledge must be considered on par with the colonial systems;

Economic interests of a corporation are not sufficient justification for infringing on Aboriginal rights.

Throughout the process mining and forestry companies have sided with the provincial and federal governments in an effort to minimize any recognition of title. The industry submission to the court contains paranoid hyperbole about the devastating impacts granting title would have to regional and national economies and the unworkable challenges it would create for private enterprise. Since the decision the response directly from industry been muted but similar misplaced views are echoed in the Globe and Mail (here and here) and in the Financial Post.

Certainly, projects opposed by First Nations with the potential to claim title will face stiffer opposition and have another legal barrier in their way. On the day the decision was released the Tahltan Nation went public with its intention to prepare an Aboriginal title and rights claim against the Province of British Columbia and Fortune Minerals Ltd for the controversial Arctos Anthracite Coal project in the Klappan area of Tahltan territory. But in this day and age projects facing Aboriginal opposition are not sailing through to completion anyway (Northern Gateway anyone?).

Building on decades of case law and a strong trend toward increased recognition of Aboriginal rights, the decision sends a clear message to proponents -- get consent or move on. This clarity could help reduce conflicts, not aggravate them. Getting consent is eminently possible in many cases -- there are diverse examples of development projects in B.C. and elsewhere in Canada proceeding with the consent of affected Indigenous peoples. The Tahltan Nation noted above is a case in point.

One of the key factors that will determine how this plays out will be whether the provinces get on board and boost their standards for consultation before issuing mineral claims, exploration licenses, etc. While Ontario has made some progress on this front in recent years, B.C. and Quebec were well behind the pre-Tsilhqot'in standard for consultation and accommodation so they've got some serious catching up to do now.

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